Do the plans come with the property?

Do the plans come with the property?

This is a kind of case study in regards to a classic issue: “Who owns the architectural drawings?”

I’ll give you a little background. As I mentioned in a previous article, we developed a really nice design for a single family residence on a tight lot, and got it approved by the city planning department. Then we worked on the construction documents right up to where we were about to submit for the building permit and had to put the project on hold. The clients suddenly had a situation where it was more advantageous to move and so the property went up for sale.

I got a call from the client’s realtor yesterday asking for clarification. The buyer had asked something to the effect of: “So if we buy the property, do the plans come with it?”  The realtor had to pause. She realized she didn’t actually know the answer, and called me. I don’t profess to be an intellectual property attorney, but I had an answer for her.

The legal answer is no, but the practical answer is that you can license them.

For all tense and purpose, the reality is that the design is most likely very closely tied to the property regardless, and it’s not necessarily a matter of outright ownership. I’ll explain.

As is common in the Architectural profession, our contract for services is with the property owners. These professional service contracts do not grant ownership of the design or other ‘instruments of service’ such as the drawings, images and electronic files. It is common for most architects retain ownership and copyrights of these. I know that this can seem a bit odd in comparison with the ownership of a work of art or a book, but that’s why there are actually laws written to specifically address architectural services. For all practical purposes, this does not diminish the value of the design for a particular property.

I got the impression that the buyers were hoping to include the ‘ownership’ of the drawings and intellectual property in the sale of the real estate. Outright ownership of the designs is actually very unusual for this situation. It’s more common when a corporation wants to build multiple retail stores or restaurants. Then they’ll just buy the design outright and repeat it. Despite the significant cost, it’s still cheaper than licensing each use.

However, I think I understood their intent, and licensing the work is all very workable, common and most likely achieves the actual desired result. I guessed that the buyers just want to preserve their right to use our designs for this particular property. As it turns out, that’s pretty much what they wanted.

The project is in a jurisdiction where there is always a certain amount of minor revisions requested by the city during the application review; they would need a registered architect to respond. My solution was to offer the following options.

1)     License the design from our firm for a fee and use another great firm to respond to the city and provide construction administration or

2)     Just contract with our firm to complete the project.

As in any site specific design, considering our familiarity with the project and relationship with the city, it would most likely be more cost effective to go with us, but they are welcome to use another firm if they prefer. We’ve had projects brought to us in that fashion, but more often after a long period of time or if the other firm is unable to handle the project. Frankly, a larger concern is the expiration of the planning approval. The planning permit can be extended in most cities, but not forever (in this case another 12 months), and the longer you wait the more code changes will have been made. The more code changes made mean the likelyhood of more issues cropping up when the review is done.

I’ll just remind all my friends out there that I’m not an attorney, and legal advice is best taken from one.